Rowland, J.This is an appeal by the decree-holders who in execution of a money decree against a number of members of a joint family put up to sale certain properties of the joint family. After the sale three of those members presented objections u/s 47, Civil P.C., and also under Order 21, Rule 90 contending that the execution as against them was not properly constituted at its inception and the Court had no jurisdiction to proceed with it. The Court allowed the objection and declared that the sale which had been held should not affect the interest of the minor judgment-debtors who were petitioners before it. The facts as to representation of these minors are that in the original suit they were represented by a Pleader, Babu Jagdish Chandra Mitra, appointed by the Court to be their guardian ad litem; but in the execution application no reference is made to the above-named pleader.

2. Execution was sought to be taken against the minors describing them as under the guardianship of Gobardhan Das who is brother of one and uncle of others of the minors and is the managing member of the joint family. In the course of the proceedings in execution Gobardhan appeared. He took time and he obtained adjournments of the sale from date to date, asking for adjournments on some of these occasions in the name of all the judgment-debtors including the minors and waiving all objections regarding the necessity of issuing a fresh sale proclamation in consequence of the sale having been adjourned.

3. The sale was eventually held on 5th May 1938 and the property knocked down to the decree-holders and the objection u/s 47 and the application under Order 21, Rule 90 was presented on 4th June 1938. It is presented in the name of the minors through Babu Radha Kishun Daga their maternal uncle. An application was presented for the discharge of Babu Jagdish Chandra Mitra and appointment of the maternal uncle as their next friend. It is obvious that the failure in the execution petition to name Babu Jagdish Chandra Mitra as the guardian ad litem of the minor and to issue notice to him under Order 21, Rule 22 and to the minors through him was in contravention of the correct procedure.

4. It is clear too that there is no order of the Court either removing him or appointing Gobardhan Das as guardian ad litem so as to authorize the latter to represent the minors in the execution proceeding and to make any admissions on their behalf or any terms with the decree-holders with reference to the proceedings in the execution and to such matters as adjournments on conditions. The question is whether these defects are to be considered fatal to the proceedings.

Mr. Mahabir Prasad has relied on the Privy Council decision in Walian v. Banke Behari (1903) 30 Cal 1021 in which a decree and sale in execution had been obtained against minors whose mother had been nominated by the opposite party to be guardian ad litem and had in fact appeared and acted as such throughout the proceedings, but the Court had never passed a formal order appointing her to be guardian ad litem.

5. In a suit brought by the minors years afterwards to set aside the sale and recover possession of the property the Privy Council held that the sale was not a nullity, that the alleged irregularities had not caused prejudice to the plaintiffs and they could get no relief. The position here, however, is not quite on all fours. In Walian v. Banke Behari (1903) 30 Cal 1021 all the parties had for years acted on the supposition that the mother had been properly appointed and had acted as guardian lawfully and regularly. The proceedings were held not to be bad merely because that understanding proved in fact to be mistaken.

6. In effect, an arrangement had been proposed and carried out for the re-presentation of the minor, an arrangement which, if the attention of the Court had been given to it, would have been clearly unobjectionable and would have been approved. But in the case before us, it is not so; on the face of the record it was apparent that the proposal to appoint Gobardhan to represent the minors was highly objectionable for the obvious reason that there was already a guardian ad litem appointed for the suit, including the execution proceedings also, therefore an order appointing Gobardhan can hardly be supposed to have been made by implication when in the circumstances it could not be made.

7. No doubt it was possible for the Court to remove the pleader and thereafter to appoint Gobardhan, but the Court at this stage was not asked to remove the pleader. So the condition precedent to Gobardhan being appointed or acting as guardian ad litem did not exist. Along with the difficulty arising out of Order 32, Civil P.C., we have also to consider the bearing of Order 21, Rule 22 which requires a notice to be served on the judgment-debtor to show cause why execution should not be levied. No such notice was served on the guardian ad litem appointed by the Court who should have received notice on behalf of the minors.

8. It is said that a notice was served on Gobardhan and Mr. Mahabir Prasad suggests that this notice though served on a wrong person may suffice to give the Court jurisdiction to proceed with the execution. No doubt the service of notice on a wrong person does not in all cases invalidate the proceedings in execution. There was the case in Malkarjun v. Narhari (1901) 25 Bom 337 in which the notice had been served on the wrong person as the legal representative of a deceased mortgagor. An objection was taken in those proceedings that the person on whom notice had been served was not the legal representative. The Court considered that objection and decided against it. The property was sold. Years afterwards when a suit was brought to avoid the sale on account of the defect in the proceedings owing to the wrong person having been brought on the record and the right person not having been brought on the record, their Lordships held that the sale could not be defeated as the Court had jurisdiction to hold it; it had jurisdiction to hold rightly or wrongly that the person who had been brought on the record was the legal representative of the deceased debtor.

9. But this case is different. Here we are not trying after long lapse of time the effect of proceedings which have long ago reached their conclusion in the Court which was seised of them. But we are dealing with a pending case and a sale which has not yet been confirmed. We are also not dealing with a case in which the Court has mistakenly held that Gobardhan was the right person to be served with the notice. On the contrary as soon as its attention was drawn to the matter, the Court had no hesitation in finding that Gobardhan was not the right person. Once the Court has found that the legal conditions do not exist for proceeding with an execution, then there is a lack of jurisdiction in the carrying on of that execution; and all the proceedings taken in the execution which was not properly constituted in the absence of proper notice under Order 21, Rule 22 must fall to the ground. It follows therefore that the sale of the share of the respondents was rightly held by the Subordinate Judge to be unsustainable.

10. Mr. Mahabir Prasads last contention was that the sale which purported to be a sale of the entire property, a house, should either stand or be set aside as a whole. There is I think substance in the contention. This is not a case in which the sale has been confirmed, possession taken and enjoyed for years but in respect of part or a share of the property without title. In that state of things there are cases in which the purchaser has retained possession of so much of the property as could in those proceedings have been validly sold to him. It was indeed too late to set aside the entire sale. But here the sale not having been yet confirmed (I speak with reference to the date of the objections before the Subordinate Judge) it is to be considered what was being put up for sale and for what the purchaser was bidding.

11. If there was not a mutual understanding between the Court and the bidders as to what was being put up to sale, it is difficult to say that such a sale can be confirmed. For the respondents Mr. C.P. Sinha has no objection to this direction being given. In the result the appeal is digmissed: subject to a direction that the order of the Subordinate Judge be read as an order setting aside the sale in its entirety. The respondents are entitled to their costs actually incurred by them.

Chatterji, J.

12. I agree.